Lutin v Perlberger 2024 NY Slip Op 31879(U) May 29, 2024 Supreme Court, New York County Docket Number: Index No. 158734/2023 Judge: Dakota D. Ramseur is the story of attorney fees, pro-se plaintiffs, a judgment from 2000 and the aftermath. Plaintiff loses this round.
“Pro se plaintiff, Gary Lutin (plaintiff), commenced this action for extortion, fraud, and pursuant to Judiciary Law§ 487, against defendants, Ralph Perlberger, the Law Offices of Ralph Perlberger (collectively, the Perlberger defendants), Eric P. Schutzer (Schutzer) and The Schutzer Group, PLLC (collectively, the Schutzer defendants), stemming from Perlberger’s representation of plaintiff in another matter and the Schutzer defendants’ efforts to collect fees from plaitniff due to Perl berger. The Schutzer defendants now move pursuant to CPLR 321 l(a)(l), (5) and (7) to dismiss the complaint. The motion is opposed. For the following reasons, the motion is granted. As relevant to the instant motion, on July 2, 2001, the New York City Civil Court granted Perlberger a $37,043.75 money judgment against plaitniff in the action entitled Per/berger v Lutin, Index No. TS 1781-00/NY (the 2001 Judgment). The 2001 Judgment covered fees plaintiff owed the Perlberger defendants for legal services rendered in two commercial litigations: Lutin v New Jersey Steel Corporation, et al. and D.S. Atkinson, Inc. v Lutin Central Services Co., Inc. The Civil Court simultaneously dismissed plaintiffs counterclaims against the Perl berger defendants for legal malpractice in those matters. On May 24, 2018, Perl berger commenced an action in Supreme Court, New York County entitled Per/berger v Lu tin, Index No. 154885/2018, by the filing of a summons and motion for summary judgment in lieu of complaint, seeking to renew the 2001 Judgment (the Renewal Action). By order dated August 13, 2018, another justice of this court granted Perl berger’ s motion over plaintiffs opposition and directed the parties to settle an order on notice. On June 5, 2019, the County Clerk entered the renewal judgment against plaintiff in the amount of $97.594.11 (Renewal Judgment). On February 25, 2020, plaintiff filed a motion to vacate the Renewal Judgment for lack of jurisdiction. On April 27, 2020, another justice of this court denied the motion.”
“Claims for “[e]xtortion and attempted extortion are criminal offenses (see Penal Law§ 155.05[2][e]; § 110.00) that do not imply a private right of action” (Minnelli v Soumayah, 41 AD3d 388, 389 [1st Dept 2007]). Plaintiff’s opposition concedes that his allegations concerning extortion do not make out a cognizable claim, but instead requests leave to serve an amended complaint to change his fifth and sixth causes of action to caption them as “Harassment” instead of “Extortion.” Plaintiffs request is denied, as plaintiff has not moved to amend the complaint or otherwise presented any of the substance of the proposed amendments, and thus, the Court is unable to weight the sufficiency of the proposed amendments (see JP Morgan Chase Bank, NA. v Hall, 122 AD3d 576, 582 [2d Dept 2014] [holding that the lower court correctly denied plaintiff’s request for leave to amend was made in a footnote on the final page of the of the third party plaintiffs memorandum of law and “there is no indication, even in a conclusory fashion, as to what the new pleadings would be”]). Plaintiffs allegations that the Schutzer defendants forged documents tie directly into plaintiff’s allegations concerning extortion, that is, plaintiff alleges that the Schutzer defendants used forged documents to extort plaintiff. Thus, as plaintiffs facts alleging extortion do not state a claim, so too are plaintiff’s claims that the Schutzer defendants submitted a forged document insufficient to state a claim. To state a cause of action to recover damages for fraud, which must be pleaded with the requisite particularity under CPLR 3016(b), a plaintiff must allege “[a] misrepresentation or a material omission of fact which was false and known to be false by the defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury” (DeMartino v Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, 189 AD3d 774, 775 [2d Dept 2020] [internal quotation marks and citations omitted]).”Pursuant to Judiciary Law§ 487, an attorney who is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party is guilty of a misdemeanor, and forfeits to the party injured treble damages, to be recovered in a civil action” (DeMartino at 775-76 [internal quotation marks and citations omitted]). A cause of action to recover damages for violation of Judiciary Law § 487 must be pleaded with specificity (see id.). Here, plaintiff fails to plead facts stating a claim for both “fraud on the court” and under Judiciary Law§ 487. Plaintiff essentially alleges that the Schutzer defendants falsely claimed they filed certain documents as part of the Renewal Action, and that those statements resulted “[i]n the improper impositions of costs and burdens not only on Plaintiff and the court but also on non-party organizations” and further that the court in the Renewal Action did not “hear evidence of a previous settlement of Perlberger’ s claims.” However, plaitniff [sic] fails to allege a deception as to material facts, the Schutzer defendants’ intention to deceive, “[o]r that that [plaintiff] suffered damages that were proximately caused by the alleged deceit” (id. at 776). Again, plaintiff requests that: “If the Complaint does not satisfy the pleading requirements established by that case, or by other relevant cases, Plaintiff requests the Court’s direction to amend the Complaint accordingly.” As discussed in the preceding section, plaitniff [sic] failed to provide any factual basis to support his request for leave to amend the complaint, and thus, the request is denied (see JP Morgan Chase Bank, NA. at 582). Accordingly, as plaitniff [sic] failed to plead facts suggesting that the Schutzer defendants intentionally deceived plaintiff or the Court, or any damages flowing therefrom, plaintiff’s claims for “fraud on the court” and under Judiciary Law § 487 are dismissed.”